15 La. 588 | La. | 1840
delivered the opinion of the court.
The plaintiffs state, that on the 22d of July, 1837, they >urchased of the defendant one undivided eighth part >f a square or islet of ground, in the suburb Annunciation, lesignated as No. 66 on the plan made by Lafon, and comirising fourteen lots ; that they paid their proportion of the ;ash amount stated in the act of sale ; that for the balance hey furnished four several promissory notes, to the order of a bird person who endorsed them ; and that the said notes laving all been paid at maturity, they owe nothing oh the nice or consideration of their purchase. They further liege, that their co-purchasers of the other seven-eighths laving failed to meet their engagements and pay their notes, udgments were rendered against them in favor of the efendants ; and. that, executions having issued, they have aused the whole square, including the plaintiff’s portion, to e seized and advertised for sale, by virtue of the mortgage. 'hey also allege, that it was not their intention to become Hind for the debt of their co-purchasers; nor that the
The evidence shows, that in December, 1836, (he defend ants’ agent entered into a written agreement, under private signature, with several individuals, to sell them the property in question for sixty thousand dollars, of which ten thousand dollars were to be paid in cash ; to have it divided into lots, and to permit the same, so divided, to be exposed for sale, afterwards, in the name of the defendants, on condition that the choice of the notes accruing from the sales, and satis-j factorily endorsed, should be given to the defendants i payment of the balance due them on the original price ;| and it. was also agreed and understood, that “ the payment o, the notes should also be secured by special mortgage on each o, the lots for which the same should be given in payment;” and] further, that if the then purchasers wished to hold the pro perty in their own names, the sale should not be made i lots, but that the whole should be conveyed and transferred to them by a regular notarial act, to be hereafter executed on their furnishing t.o the vendors their separate notes, satisl factorily endorsed, to the amount of the said balance! payable in four equal instalments.
On the 22d of July, 1837, the parties appeared before notary and executed a regular deed of sale, based on thl written agreement under private signature, and nothing wal changed in its disposition except that the property, not beiqf any more subject to be exposed for sale in the manner prq vided for, was absolutely conveyed, in distinct portions, to thl
In relation to the mortgage, we find in the act the following stipulations : “And in order to secure the full and punctual payment of the above described promissory notes, they jointly, affect, mortgage and hypothecate, tyc. tyc.; which clause, being preceded by, “ and for the balance, to ivit: $50,000, <^c. fyc., said purchasers have produced and furnished in their respective proportions of interest in the purchase of said properly, the following promissory notes, &c. &c.,” is followed by, “ and the said purchasers, each in the proportion of their respective shares and interest in the said properly, do hereby confess judgment, in favor of the said vendors, for the aforesaid sum of $50,000;” and, further, “ the said vendors, reserving to themselves the right and privilege, in case oj non-payment of any of the aforesaid promissory notes, at the respective periods of maturity thereof, to cause the described premises to be seized and sold by the executory mode of proceeding,” &c. ; and it is also necessary to remark, that the proportion of the respective shares and interest of the purchasers, is previously established, thus : “ JVbw the said parties do hereby agree that the sale of the said square of ground shall be made in favor of” &c. &c., “ in the following proportions,” &c.
From the particular care which the parties appear to have taken to distinguish their proportion of interest, in the property sold, in payment of which they respectively gave their separate obligations, endorsed by different endorsers, it seems to us that it was their clear intention to acquire such distinct portions of the property conveyed, as might have been made the subIjeet of separate deeds of sale to each of them respectively; land that, although undivided, the square of ground cannot ¡properly be said to have been purchased iri-,common. Solidarity is never presumed ; and here, far from there being any
But it is contended, that although under the contract, the] obligations of the purchasers to pay the price may have been] distinct and separate, still, the mortgage and privilege reserved to secure the payment of said price, prevails over| each and every portion of the property conveyed and subject-1 ed to it; and that in order to limit the exercise of such mort-1 gage, there ought to have been an express stipulation. Itl will be conceded, however, that the mortgage is only an] accessory to the principal obligation, and that the extin-] guishment of such principal obligation, operates the releasel of the mortgage. Louisiana Code, articles 3251, 3252. Ill so, how can the defendants insist on preserving their right ofl mortgage on every portion of the property conveyed, after! having been paid off the amount of the price of any one olf those portions 1 The principal obligation in this case is ir the nature of a joint one, and so is the mortgage, as it clearlyl results from the express clause, that “the purchasers jointlyi affect, mortgage,” &c.;’ and it is a well known rule, that! “several obligations,” although created by one act, have ncT other effect than the same obligations would have had, il made by separate contracts. Louisiana Code, article 2079.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.